A criminologia Queer para além da analogia da homofobia ao crime de racismo: Entre a (in)segurança jurídica e o simbolismo punitivo

Abstract

This article analyzed queer criminology beyond the analogy between homophobia and the crime of racism, examining the limits and possibilities of criminalization, as well as the effects of the Supreme Federal Court’s decision that equated homophobia with racism. The study was based on the hypothesis that the absence of specific criminal legislation and the emergency-based equivalence reinforce legal uncertainty and penal selectivity, failing to provide effective protection to the LGBTQIAPN+ population. A qualitative approach with a deductive method was adopted, based on bibliographic research and document analysis, including the examination of ADO n.º 26, MI n.º 4733, and human rights reports. It was found that the traditional penal response has proven insufficient to address the structural roots of LGBTphobia, revealing a punitive model that prioritizes symbolism over social justice. The analogy with Law No. 7.716/89, which defines crimes resulting from discrimination or prejudice based on race, color, ethnicity, religion, or national origin and establishes prison sentences for discriminatory conduct, served as the basis for framing homophobia and transphobia. However, its original scope does not encompass the specificities of LGBTphobias, which may create interpretative tensions and compromise fundamental principles of Criminal Law. It is concluded that there is a need to create an autonomous criminal type, combined with public policies and restorative practices grounded in social justice and the recognition of diversity.